The Missing Peacehttps://shaananlaw.wordpress.com
Musings on families, law and life in JerusalemTue, 10 Apr 2018 08:33:13 +0000enhourly1http://wordpress.com/https://s0.wp.com/i/buttonw-com.pngThe Missing Peacehttps://shaananlaw.wordpress.com
At Long Last….https://shaananlaw.wordpress.com/2015/10/01/at-long-last/
https://shaananlaw.wordpress.com/2015/10/01/at-long-last/#respondThu, 01 Oct 2015 09:27:23 +0000http://shaananlaw.wordpress.com/?p=979Continue reading →]]>Despite political wranglings and machinations, 22 new Rabbinic Court judges (dayanim) were recently appointed to the Rabbinic Court (Beit Din) system in Israel. This is the judicial forum in which all Jewish couples in Israel must divorce (divorce in the narrowest sense – the actual dissolution of the marriage). Some couples also adjudicate issues relating to the end of the marriage, such as property, alimony and issues pertaining to children in the Beit Din.

Marissa Newman of the Times of Israel covered this development in an unfortunately predictable trope – the bad guys are the haredi (ultra-orthodox) dayanim, the better dayanim are from the less haredi world, and the haredi dayanim don’t understand what’s going on in Israeli society. These are all stereotypes and caricatures, and don’t lead to a serious understanding of the problems with the Beit Din, of which there are many.

Following a four year stalemate, it took just 15 hours earlier this month for lawmakers to carry out a major overhaul of Israel’s rabbinical courts, possibly paving the way for “historic” changes in the body that controls divorces for the country’s Jewish citizens.

While the judges were picked by party line, as part of an agreement between the three major religious Knesset factions, the move could still change the way Israelis wind their way through the sometimes byzantine divorce process, activists and others say….

Eight of the picks were from the religious Zionist community, and 14 were ultra-Orthodox, seven Ashkenazi and eight Sephardic — corresponding roughly to one-third for the three political parties in the Knesset: Shas, United Torah Judaism, and the Jewish Home.

The seven slots for the Rabbinical High Court of Appeals, which requires eight of 11 votes to approve a candidate, were left vacant as the four female candidates on the committee and the ultra-Orthodox members faced off in opposing blocs, and with the debate centered on a rabbinical judge who issued a divorce last year to a woman whose husband was in a vegetative state — a ruling that was deemed revolutionary by supporters, and radical by the Haredi opposition.

According to Dr. Rachel Levmore, a committee member and director of the Agunah Prevention Project of the Young Israel movement and Jewish Agency, the appointments were nothing less than a “historic occurrence” that will determine the religious character of the courts and personal status issues for “generations to come.”

With the approval of roughly one-third of all rabbinical judges in Israel determined in just one day, the ramifications of the appointments on world Jewry, as well as Israelis, are immense, the rabbinical court advocate maintained. And with two positions left open for regional rabbinical judges, and seven for the High Court of Appeals, it is “imperative” Diaspora Jewry make their voices heard, she said.

“The appointment of a full third of the dayanim [rabbinical judges] in the Israeli rabbinical courts will determine the halachic [Jewish law] approach regarding personal status for generations to come, not only for the Jews living in Israel, but for Jews the world over,” said Levmore.
Why it matters

The fate of “chained” women, or agunot, whose husbands refuse to grant them a get, or religious bill of divorce, largely rests in the hands of the religious divorce courts. The courts can level financial sanctions against the recalcitrant husbands, or sentence them to jail until they comply. Without the religious divorce, the women are barred from remarrying in the State of Israel.

These “husbandless wives,” as Levmore termed them, are often stuck in limbo for years. Prior to the committee meeting, some 30 agunot penned a letter to Prime Minister Benjamin Netanyahu imploring the committee to appoint “moderate judges” who will find innovative legal loopholes to extricate them from their marriages.

This is one of the problems of the discourse around the Beit Din in particular and Family Law in general in the State of Israel. The headline we all like to see and around which we can all rally is the problem ofagunot. However, most couples get their actual divorce within a reasonable period of time, and without giving in the extortion in exchange for a get (religious bill of divorce). What often feels like an almost exclusive focus on this issue – which must be addressed – detracts attention from the problems relating to children, inefficiency over the division of property and incoherent judicial policy regarding child support, to name a few.

In addition, pro-active dayanim who are ready and willing to take on recalcitrant husbands (or wives) are not, in my professional experience, a function of where they align themselves on the religious spectrum.

The article goes on to quote Rabbi David Stav, the head of the Tzohar religious-Zionist organization:

“The divorce courts are mostly comprised of people who live in a closed Haredi world, and do not understand what’s happening around them. They don’t understand that when they delay divorce proceedings in secular society, it has terrible ramifications. It causes women to betray their husbands and husbands to betray their wives. They don’t understand that every delay is a catastrophe,” he said.

With all respect to Rabbi Stav, the notion that the more ultra-orthodox dayanim sitting in the beit din don’t understand that the delays in divorce proceedings may lead to infidelity is a notion – pardon the pun – divorced from reality, to say the least. They see people every day from all walks of life, listen to the news and are well aware that people may not maintain fidelity to their spouses through divorce proceedings. And is this really the primary quality that we want in our dayanim and judges? I would like to ask candidates – do they understand the impact of divorce on children? Are they aware of the manifestations and ramifications of emotional abuse? Do they understand the need to make decisions quickly?

About to return to my desk after this major holiday season in Israel, I look forward to a flurry of notices from the Beit Din, decisions on petitions I filed months ago, and to a spate of hearings in cases which haven’t been heard due to the shortage of dayanim.

Unfortunately, though the latest round of appointments has filled some of the spaces in the Regional Rabbinic Courts, there were no appointment for the Rabbinic High Court.

The ultra-Orthodox members of the committee, however, were not the only ones to band together to block appointments. When it came to the High Court appointments, which require eight out of 11 votes rather than a simple majority, the women on the panel — Shaked, Swid, Levmore, and bar association representative Efrat Rosenblatt — insisted that Rabbi Uriel Lavi be appointed.

Under a 2013 law, the committee was required to have at least four female representatives — a minister, a Knesset member, bar association representative and court advocate. The September 10-11 meeting had the largest female representation ever on the committee, and presenting a unified front on the subject, the High Court appointments were deadlocked.

Lavi, a rabbinical judge in Safed, came under fire by the ultra-Orthodox after he granted a divorce to a woman whose husband was in a persistent vegetative state for six years, with the approval of his family.

Rav Lavi is a wonderful dayan, and it’s a loss to the system that his appointment has thus far been blocked.

Let’s hope that the movers and shakers in charge can see their way to making the appropriate High Court appointments in the near future, to unclog this system.

]]>https://shaananlaw.wordpress.com/2015/10/01/at-long-last/feed/0shaananlawShort-Changedhttps://shaananlaw.wordpress.com/2015/08/18/short-changed/
https://shaananlaw.wordpress.com/2015/08/18/short-changed/#commentsTue, 18 Aug 2015 10:20:36 +0000http://shaananlaw.wordpress.com/?p=976Continue reading →]]>As readers even slightly familiar with Family Law in Israel know, in Israel there exists a system of more or less parallel jurisdiction between religious courts (Muslim, Jewish and some Christian groups) and the Family Court. Thus, a Jewish couple seeking a dissolution of their marriage in the State of Israel must at some point go through the Rabbinic Court, which in certain cases may also have jurisdiction to deal with issues of children, spousal support and division of property.

While most court system are plagued by delays, the delays in the Rabbinic Court system are worse than those in the Family Courts; it’s not infrequent to be called for a hearing at 9:00 am and not walk into the courtroom until noon.

Dr. Rachel Levmore recently published an article in Ynet describing the abysmal shortage of Rabbinic Court judges, known in Hebrew as dayanim, in the Rabbinic Court system.

Just to give a taste of the discrepancy between what’s happening in the general court system as opposed to the Rabbinic Court system, take a look at these statistics:

In 1960 the general population of the State of Israel was 2,150,400 and there were 129 judges in the general court system.

In 2013 the general population of the state was 8,134,500 and the number of judges 652.

Meaning, over the same period in which the population increased 3.78 times, there was a five-fold increase in the number of judges.

By contrast, since 1960 the Jewish population of the State of Israel – the population served by the Rabbinic Courts – increased 3.2 times, while the total number of dayanim increased only 1.4 times.

The following chart tells the story quite clearly. The red line indicates the general population, the green the Jewish population, the blue the number of dayanim and the yellow the number of judges.

Anyone working in the system can tell you that the problem is particularly acute in the Supreme Rabbinic Court which is more or less paralyzed for a shortage of dayanim. Unfortunately, that can be used as a tactic by some of my less scrupulous colleagues; if you want to really mess up a file these days and create an endless delay, just file an appeal against a decision of the Regional Rabbinic Court with the Supreme Rabbinic Court, since the appeal won’t be heard for at least a half a year. There are supposed to be nine dayanim in theSupreme Rabbinic Court – two Chief Rabbis and seven dayanim. Five positions are currently not filled, meaning that the two Chief Rabbis hear cases, along with only two permanently appointed dayanim.

At the same time, there is currently a shortage of 23 dayanim in the Regional Rabbinic Court, meaning positions which are vacant. Recently the temporary director of the Rabbinic Court system, Adv. Rabbi Shimon Ya’akobi, called for the establishment of a committee to appoint new dayanim for the Supreme Rabbinic Court and for the immediate appointment of 23 new dayanim in the Regional Rabbinic Courts. In addition to filling the positions, the increase in both population and divorce rates requires that another 10-20% positions be budgeted for the Rabbinic Courts.

Why hasn’t this happened until now? There is a long answer, but suffice to say the short answer is that, in Israel, as in Israel, it’s for reasons of political jostling.

Meanwhile, while the powers that be tangle, people who need – and have a right to – the services of the Rabbinic Court suffer. Due to the fact that a legally constituted Beit Din consists of three sitting dayanim, it’s not infrequent, as I can testify personally from my own work, to wait around for hours to for a hearing to begin, only to find that there is only one dayan present. Under those circumstances, it is not possible to make operative legal decisions, only to attempt to bring the parties to agreement.

Let’s hope that this relatively new government does what it takes to make the necessary appointments. So far, it doesn’t look good.

]]>https://shaananlaw.wordpress.com/2015/08/18/short-changed/feed/1shaananlawהפער שלא ייאמן ()Vaxing Public Policyhttps://shaananlaw.wordpress.com/2015/05/21/973/
https://shaananlaw.wordpress.com/2015/05/21/973/#commentsThu, 21 May 2015 09:49:29 +0000http://shaananlaw.wordpress.com/?p=973Continue reading →]]>As with many Western countries, Israel also has it’s share of “anti-vaxxers”.

I know such people, but didn’t really think that it was an issue on the radar of policy-makers until I saw this article in the Times of Israel. Apparently, there was an iniatitive by MK (Minister of Finance in the previous governement) Yair Lapid to actually cancel the child allowances paid monthly by the National Insurance Institute to families who do not vaccinate their children. Child allowances, currently around 280 shekels for one child, are slated to rise with the new government. For many families, they are an important element of the family budget.

That condition — which did not specify which vaccines would be included — revives a six-year-old debate on the legality of linking over the past few years welfare benefits to vaccinations. It also comes on the heels of a quiet climb in the number of parents opting out of some or all vaccinations, primarily from within some segments of the ultra-Orthodox community as well as Bedouin families in southern Israel with limited access to medical treatment (another group is found among upper-to-middle class Israelis, based on ideological grounds).

The Haredim and Bedouin, among those most resistant to inoculations, are also among Israel’s most impoverished and have the largest families, so they are ultimately the most dependent on the monthly allowances. Hinging benefits on vaccinations, then, puts them in a tight spot.

I’m not quite sure how it came to pass that anti-vaccination became popular in the ultra-Orthodox community, given the insistence in Jewish Law and practise on taking care of one’s body and health.

“This is a serious act, even worse than the previous attempt in 2010 to harm the allowances. Then, a reduction of the allowance was being discussed… now this refers to canceling the entire allowance,” lamented Yitzchak Kadman, director of the Israel National Council for the Child, in an email.

Given the public health threats involved with failure to vaccinate, it would seem that limits on public school registration would more effectively target this growing problem.

]]>https://shaananlaw.wordpress.com/2015/05/21/973/feed/3shaananlawTribute to the Momshttps://shaananlaw.wordpress.com/2015/05/11/tribute-to-the-moms/
https://shaananlaw.wordpress.com/2015/05/11/tribute-to-the-moms/#respondMon, 11 May 2015 06:00:36 +0000http://shaananlaw.wordpress.com/?p=971Continue reading →]]>Yesterday was Mother’s Day in the US and Canada, and Rabbi Elchanan Poupko has written an important, if not to say sensitive, article in the Jewish Press, A Tribute to Orthodox Single Moms.

Well worth reading, and I dedicate this post to those of my clients – past, present (and future) – and friends, who so deserve this tribute.

Here’s a taste, but read the whole piece:

Jewish single mothers – a growing demographic in our community – often find themselves facing a unique situation unparalleled even in the challenging world of other single moms. Responsibilities for which they have not prepared, scenarios they never imagined, and social settings that are not their natural turf – all are all tackled with skill and competence by so many Orthodox single mothers, and in a manner so humble and successful that it often goes unrecognized.

In the Orthodox community more than any other, single moms find themselves filling roles predominantly assumed by men and they do it in environments that are dominated by and filled with men. They find themselves helping their sons with Judaic studies homework that may require a yeshiva background; teaching them to say Kiddush, HaMotzie, and other prayers; and actively engaging in religious matters that traditionally have not been part of a woman’s domain.

Time and again I witness mothers in our community whose husbands have passed away, left due to divorce, or simply disappeared going to extraordinary lengths to make sure their children are brought up as upstanding Torah Jews. I know mothers who take the time to research the learning style and atmosphere at a given yeshiva; mothers who make sure to get their sons a solid bar mitzvah or Talmud tutor; mothers who make endless sacrifices to ensure their children get a quality Jewish education.

I have seen single moms making sure that their children get seats in the synagogue for the High Holidays and that their sons, who of course are seated in the men’s section where mothers can’t be present, are seated next to someone who can help them navigate the prayers. I know moms who arrange for their sons to participate in prayers throughout the year or whenever their dad is not around to take them to shul.

(Hattip – and kudos- to EZP)

]]>https://shaananlaw.wordpress.com/2015/05/11/tribute-to-the-moms/feed/0shaananlawPre-Nups in the Newshttps://shaananlaw.wordpress.com/2015/03/11/pre-nups-in-the-news/
https://shaananlaw.wordpress.com/2015/03/11/pre-nups-in-the-news/#commentsWed, 11 Mar 2015 13:35:38 +0000http://shaananlaw.wordpress.com/?p=968Continue reading →]]>I’ve written a number of times about pre-nuptial agreements in general and specifically, halachic pre-nuptial agreements intended to prevent issues of refusal to give or accept a get, a Jewish bill of divorce.

The Tzohar organization in Israel has recently formulated a new halachic pre-nuptial agreement, which they refer to as a “love agreement”. Not sure I would have gone with that particular moniker, but if it works….

The agreement was formulated by a number of very knowledgeable and responsible people in the fields of Family Law and Jewish Law, so I expect it will be widely used. Having said that, as good as an agreement may be, it’s always the wiser part of discretion to consult with an expert before signing any kind of an agreement, to make sure it serves your needs.

In addition, an article by Chicago filmmaker Beverly Siegel- director of the 2011 film “Women Unchained” – in the Tablet recently caught my eye. It’s a great survey of the whole issue of pre-nuptials. Here’s a segment of the article, but I highly recommend reading the entire piece:

The earliest prenuptial agreement to prevent get refusal was developed by rabbis in Morocco in the 1950s and endorsed in concept by the chief rabbi of Jerusalem in the 1980s. In the early 1990s, Rabbi Mordechai Willig developed an American version at the behest of the Rabbinical Council of America, the main association of Modern Orthodox and centrist Orthodox rabbis, with which the Beit Din of America, a rabbinic court, is affiliated. A decade later, Israel came out with its own version, known as the Agreement for Mutual Respect.

The BDA agreement contains two simple provisions: First, if either spouse requests, the couple agrees to appear before a panel of dayanim, judges, and to abide by their decision regarding the get. Second, if the couple separates, the husband’s obligation under Jewish law to support his wife will be set at $150 a day, indexed to inflation, from the date he receives notice of her intention to collect, until the time that they are no longer married under Jewish law—i.e., until he gives a get.

The prenup says nothing directly about a get, as that could be interpreted as compromising a man’s free-will decision to give it; the man must give the get freely—although in the 12th century, Maimonides created a loophole that allowed rabbis to beat a man to help him realize that he willed his wife her freedom. Instead, the prenup just enforces the husband’s obligation, as set forth in the ketubah, the Jewish wedding contract, to support his wife. Basically, the prenup imposes a monetary cost to a husband’s decision to stay married to her.

But if the wife fails to appear in beit din or abide by the court’s decision, the husband’s support obligation ends.

“It’s a rock-solid solution,” said Rabbi Yona Reiss, head of the religious court of the Chicago Rabbinical Council and past director of the Beit Din of America. The prenup, said the Yale-trained lawyer, “has produced a get in a timely fashion in 100 percent of the cases where it was duly executed.”

Before it was challenged in civil court, however, some critics contended that if the prenup worked, it was only because the men who signed it would have given a get without a dustup anyway. Doubts about the prenup’s ability to withstand a legal challenge were significantly allayed in February 2013 when a Connecticut court affirmed its constitutionality. In the opinion of the judge, the BDA prenup, in terms of enforceability, was no different than a secular contract.

“It’s a huge win for the Orthodox Jewish world,” said Dr. Rachel Light, the agunah in the case, who received a significant award and a get.

]]>https://shaananlaw.wordpress.com/2015/03/11/pre-nups-in-the-news/feed/1shaananlawFree-Range Sabrashttps://shaananlaw.wordpress.com/2015/02/19/free-range-sabras/
https://shaananlaw.wordpress.com/2015/02/19/free-range-sabras/#respondThu, 19 Feb 2015 11:14:32 +0000http://shaananlaw.wordpress.com/?p=965Continue reading →]]>Inspired by the recent ruckus in the United States over “free-range parenting” as opposed to “helicopter parenting” Jessica Steinberg of the Times of Israel has written an interesting – anecdotal – article describing the freedom given to Israeli children.

Every day, most Israeli kids head to school. Some get dropped off by their parents, others take a public bus or ride a bike, and many get there on foot, often alone, sometimes accompanied by an older sibling.

Call it limited-range parenting.

When an American 10-year-old accompanied his 6-year-old sister to the library in a Maryland suburb a few weeks back, the local police ended up bringing the children home and threatening the parents with social services.

The event prompted numerous Facebook threads, blogs and tweets about “helicopter” parenting versus “free range” parenting, pitting parents who hover closely over their offspring against those who want their kids to roam free, or at least as far as the local playground.

From afar, it’s easy for Israeli parents to scoff at overprotective American parents who don’t or can’t let their kids walk home from school by themselves….

The impromptu debate also offered an opportunity to look at some of Israel’s parenting methods, and why Israeli kids are still allowed — by and large, and usually as of a certain age — to roam on their own.

For while Israeli parents worry about national and political security — and about their kids entering the army at age 18 — those concerns don’t usually translate into limitations on kids in their immediate surroundings.

“The culture in Israel is much more free and neighborhood-centric,” said Asher Ben Arieh, a professor of social work at Hebrew University who has researched child well-being for much of his career. “The Israeli community still exists and therefore kids are a part of it.”

Israeli neighborhoods tend to still be safe places, said Ben Arieh. There are exceptions, of course, such as December’s arrest of a Jerusalem taxi driver who is suspected of kidnapping and sexually abusing a 7-year-old girl after picking her up from school where she was waiting for her ride home.

Yet there is a sense of security in most neighborhoods. Kids often recognize their neighbors and even if they don’t, there is an ingrained tradition of looking out for one another, as exists in many places.

In Israel, precautions are taken to protect children when they’re out on their own. Schools have older kids serving as so-called “gold guards,” crossing guards garbed in neon yellow vests at crosswalks close to schools who offer a safe route for children walking on their own to school each morning. Public service announcements are broadcast on the radio, recommending parents that only kids aged nine and up can ride bikes and cross streets by themselves.

]]>https://shaananlaw.wordpress.com/2015/02/19/free-range-sabras/feed/0shaananlawWanting Outhttps://shaananlaw.wordpress.com/2015/02/12/wanting-out/
https://shaananlaw.wordpress.com/2015/02/12/wanting-out/#respondThu, 12 Feb 2015 13:51:42 +0000http://shaananlaw.wordpress.com/?p=963Continue reading →]]>One of my earlier blogposts was entitled Aliya and Shaky Marriages, about the pitfalls of making aliya in the hope of saving a bad marriage. (Spoiler alert: it’s a bad idea).

A recent decision by Judge Rivka Makayes of the Family Court in Petach Tikva, emphasizes yet another, highly problematic aspect of the move to Israel; specifically, when one spouse cynically plans the move to exploit tactical advantages in a legal battle with the other spouse, a battle which he or she has planned, but (obviously) conceals from the other partner. It’s actually a really crass and cynical attempt at forum shopping.

The case before the court was brought by a woman who lived in the United States with her husband and family. The couple went through a crisis and the marriage was pretty much on the rocks. The husband suggested to the wife that they come to Israel for a six-month trial period, in order to engage in counseling, and get the wife away from her lover in the States.

They had return tickets, and there were clear objective indications that the wife understood they weren’t here to stay. Nonetheless, after about two or three months in the country, the wife and minor child applied for Israeli citizenship, which, according to the wife’s testimony, was a result of the husband having convinced her they needed to do this to be eligible for health insurance. At around the same time their citizenship came through, the mother was served with a divorce suit from the Rabbinical Court, attached to which were suits for property, spousal support, child support and child custody.

Obviously, anyone stuck in a country where they don’t want to be – in which they had no plans of living for more than six months – is in a lousy position when hit with a lawsuit like this. At the outset the playing field is not level, since she wants to leave and get back to her home. Consequently, regardless of where something like this happens, she is going to negotiate an end to the suit on conditions that are less than favorable to her.

When this happens specifically in Israel, a woman who has never worked or has little earning power is at a distinct disadvantage, since in Israel, there may be no spousal support before the divorce and certainly no alimony with the dissolution of the marriage. Often, there is no spousal support at all if the husband has serious grounds for divorce, which is the case where there is adultery. So, here is a case where the husband – apparently a successful lawyer with property, and knowledge and control of all the family finances – might be free of any obligation to pay spousal support or alimony, which in all likelihood would not have been the case had the divorce proceedings taken place in the United States.

The punch line here is that the wife never worked out of the house and was basically entirely dependent on the husband for money. In addition, the husband’s assets were primarily in the US.

The couple had a number of children over the age of 18 and only one minor child. After the woman had been served with divorce papers from the Rabbinic Court, she notified the court that she had to go to the States to see her elderly father. From the US, she filed in the Family Court in Petach Tivka, and petitioned under the Hague Convention of the Civil Aspects of International Child Abduction (which has been enacted into legislation in Israel) for the return of the child to her regular place of residence – meaning the United States – saying that the child had been unlawfully removed from the United States.

Judge Makayes’ decision focuses on the last point in time at which one can point to the common intention and agreement that existed between the parties. Based on a previous Family Court decision with somewhat different circumstances, she made the point that joint intent cannot mutate and change based on a unilateral action of one of the parties.

In this case, the last time this couple had a common intent was when they left the United States to travel for a period of six months to Israel, intending to return to the US on June 30, 2014. The judge found further, that the husband had deliberately misrepresented his intentions – including his alleged desire to enter into counseling to try and save the marriage – in order to ensure that he wouldn’t have to adjudicate the conflict in the United States, where the bulk of the assets are located.

The child was ordered returned to the United States, and in case anyone wasn’t sure how the judge really felt about the case, the husband ordered to pay 50,000 shekels in court costs, very high by local standards.

This decision shows, once again, that despite whatever chatter there is out there about Israeli courts being reluctant to return children to other countries, this is patently not the case from any reasonable review of Hague Convention cases before the Israeli Family Court system. This decision is particularly important – and very much in line with Judge Makayes’ work and thinking first as a lawyer and then as a judge – in understanding the power dynamics in a marriage, and the difficulty in ascertaining when one or another party actually gave full informed consent to a decision basically imposed on them.

]]>https://shaananlaw.wordpress.com/2015/02/12/wanting-out/feed/0shaananlawTaking a Standhttps://shaananlaw.wordpress.com/2015/02/06/taking-a-stand/
https://shaananlaw.wordpress.com/2015/02/06/taking-a-stand/#respondFri, 06 Feb 2015 07:47:35 +0000http://shaananlaw.wordpress.com/?p=957Continue reading →]]>Rabbi Jeremy Stern of the ORA organization takes a stand against Yechiel Friedman, a man refusing to give his wife a get for at least 18 years.

For those of you unfamiliar with Jewish ritual, Rabbi Stern is refusing the count Mr. Friedman in a minyan, the quorum of ten men required for Jewish prayer.

Kudos to Rabbi Stern and ORA for their good work, and for taking a stand, for making the refusal to give – or receive – a get, socially unacceptable.

(Hat tip: EZ)

]]>https://shaananlaw.wordpress.com/2015/02/06/taking-a-stand/feed/0shaananlawAnother Point of Viewhttps://shaananlaw.wordpress.com/2015/01/13/another-point-of-view/
https://shaananlaw.wordpress.com/2015/01/13/another-point-of-view/#respondTue, 13 Jan 2015 21:03:15 +0000http://shaananlaw.wordpress.com/?p=950Continue reading →]]>I asked Adv. Michal Fein, a co-member of Divorcing Peacefully, the collaborative divorce practice to which I belong and one of the architects of the new law which I criticized in my post below, to respond to the critique of the law.

Michal very kindly did so, and I post her comments, in Hebrew here. Interspersed is my translation to English of her remarks.

On Dec. 9, 2014 the Knesset approved on second and third readings the proposed Law for the Settlement of Litigation in Family Conflicts, which will come into effect in nine months.

It’s surprising that while the legislative branch actually fulfilled its obligation and took a step to diminish the gap between archaic legislation and changing reality – the reaction coming out of the Israeli legal community is one of fear and suspicion of the new and unknown, despite the general consensus that the current situation is unbearable.

The militancy, bullying and legal violence which characterize the (lack of) culture around divorce in Israel exact a tremendous social cost and the State is forced to sink huge resources into financing the “wars of the Jews”. This, without relating to the damage, incomparable in its severity to the human fabric of the families torn apart, in general, and to the children, in particular. And for what?

Over tens of years many studies attest to the fact that time after time proceedings which finish in judicial rulings, which impose the power of the State on the family, do not help the lives of the family members, whose links, by necessity, continue many years following the judicial ruling.

From this, we see that it is necessary everywhere to seek alternate ways to resolve conflicts within the family. How much more so in Israel, taking into account the complex legal situation which exists here within the realm of Family Law; the lack of separation between religion and the State and a multi-cultural population, and the known legal phenomenon which is known derisively as “the race for jurisdictions”.

Unlike many others, I was not a party to the delusion that in the current political climate in Israel it is possible to nullify the “race for jurisdictions”. In the existing political reality one should not be surprised that article 6 of the new law establishes that there is nothing in it to change the existing rules regarding the jurisdictions of the courts and the religious tribunals in Israel.

Whoever appreciated this reality understood that there is a need to find creative optimal solutions that are possible for the sake of a significant improvement in the culture of divorce in Israel.

The legislation proposed as a private member’s bill by MK Meirav Michaeli, which I was a partner in drafting, included complex, sophisticated solutions in the given reality, by creating a system of internal checks and balances, in order to change the default choice of the community of people divorcing in Israel.

Today, when a man or a woman request legal relief against a member of the nuclear family – the default choice is to file a suit with the court/religious tribunal. Although lawyers may recommend to open the proceedings by filing a Petition to Resolve a Conflict, this is a possibility few recommend or use.

In this context it is important to emphasize that there have been four different suggested laws tabled before the Committee of Law and Justice – that the hearings on them were merged, based on the Sheinhav Committee’s recommendations and on a memorandum of law from 2005 and 2006, with some changes. The goal of these suggested laws was identical but the disagreement about the proper way to achieve it was difficult and charged.

At the end of the day, optimism and the hope for change prevailed over suspicion, and the law was legislated. In my opinion, this should be blessed, at the same time recognizing that this is only the beginning. The change in the culture of divorce in Israel won’t happen in a minute, and there needs to be much activity which there is not room to delineate here.

The aspiration is that the new law will initiate the process of change we hope for and will give a great push.

Changing the default choice of ltigation – their obligation by the State to refrain from filing a statement of claim (which is filled with reciprocal badmouthing and emotional harm) – will significantly raise the possibility that more people will turn to the alternate systems to resolve conflict (ADR) and also will allow them to reach more long-term agreements.

There’s no disagreement that this is a new, revolutionary law whose results and ramifications will be monitored from the time of its execution.

The legislative branch was aware of this. Therefore, embedded in the law are a number of systems for monitor and control; the law will a priori not be implemented in cases of violence and does not prevent filing petitions for restraining orders according to the Law to Prevent Family Violence. Article 9 of the law sets out that the force of this provisional law is for three years. In addition, article 8 requires filing annual reports by the executive branch (the Ministry of Justice and the Ministry of Social Welfare) to the committee of law and justice of the Knesset regarding the execution of the law.

If that is not enough, the law grants jurisdiction to the Minister of Justice to create rules of procedure in order to execute the law, all the while recognizing the need to provide a response to emergency and unusual cases.

In summation, the new law is intended to implement the recommendations of the Sheinhav Committee, given the painful fact that it is not possible to solve the phenomenon of the “race for jurisdictions”. Despite this being only the beginning, this is a revolution. We must not continue to be prisoners to the “exceptional circumstances” – of the most difficult family conflicts.

In other words, it is forbidden to allow the pathological cases to impose the implications of their behavior on the general population. We must give thought to those families who are dragged against their wills to ugly legal proceedings, often cruel, and to allow them to choose another way.

I’ll open this with an apology: I am aware that there are good and idealistic people who have invested time, energy and thought into the new law forcing people in family conflicts to take a long time – over nine weeks – to explore Alternate Dispute Resolution (ADR). Despite the good intentions of these good people, what springs to my mind is that John Lennon (think: Imagine) has met the Emperor’s New Clothes. So sorry, I for one am wishing this new law would just go away.

In Hebrew the law is:

החוק להסדר התדיינות בסכסוכי משפחה (הוראת שעה), תשע”ד-2014

A rough translation: The Law for the Settlement of Litigation in Family Conflicts (Provisional Order), 5774-2014.

In the closing days of this last Knesset – since we head for new elections March 17, 2015 – our lawmakers (actually, just 9 out of 120 Members of Knesset were there for the actual vote) – saw fit to actually prohibit people from litigating family disputes without first spending over two months exploring options to litigation.

As family conflicts becoming increasingly difficult, far more intense and entrenched, rather than invest the resources necessary to deal with high conflict, a kind of hope addiction seems to have infiltrated some of the movers and shakers in the world of family law in Israel. I can’t be part of the choir singing praise for this law; I have a sinking feeling that it’s a law filled with pitfalls which will leave the weak weaker, and exacerbate the failure of the system to adequately address the issue of high conflict families.

Don’t get me wrong, I’m all for alternate dispute resolution – under the right circumstances. I’m a mediator, collaborative divorce practitioner and I encourage clients to reach good agreements that will allow them to move on with their lives rather than spend their time and money using the law to take revenge. I like to think that no judge or client will ever say that I litigated without cause.

However, courts have a critical role to play, particularly in dealing with high-conflict couples, couples where there is emotional and financial abuse, unhealthy parental gate-keeping, and disparity in control of and knowledge of the finances. Properly timed filing of a lawsuit can be the very trigger which changes the power relations, and allows for serious negotiations to take place.

Now we have a sweeping law which diminishes the autonomy out of the individual, individuals who may have had their autonomy seriously limited or derailed by their intimate partner.

After that little rant, what’s the law?

It’s a short law, just 9 articles, and the procedural rules have yet to be written (my own hope addict admission: I’m hoping that there is a delay in writing the rules, so that there will be a delay in implementing the law). Despite its brevity, it’s a convoluted law, leaves more questions unanswered than answered and is filled with ambiguities which no doubt will be speedily exploited, thereby further clogging up the system. I’m not going to enter into a legal critique of the law, which is beyond the scope of this post, but give an overview.

Very simply, under the new law a person who wants to file a suit in a family dispute, may not do so, but must first file a “Petition to Resolve a Conflict” to the court, which will then be referred to the support unit affiliated with the court, staffed primarily by social workers, and usually one lawyer and a psychologist.

Over a period of 45 days the parties must have four meetings at the support unit, and this period may be extended by another 15 days. During these meetings, the staff at the support unit is to give the parties information regarding options available for resolving their conflict, and to inform them of the ramifications and consequences of each of the paths open to them, including litigation. Ten days after the end of this period, the support unit then gives recommendations as to the path this family should take for resolving their conflict.

Let me just pause here to say that when the law says “court” it means the Family Court system, as well as religious (Muslim, Christian, Druze and Jewish) courts authorized by law to adjudicate some family conflicts. As such, the new law has thrown a wrench in decades of legislation and Supreme Court rulings which effectively diminished the destructive impact of what’s known as the ‘race for jurisdiction’ in the Israeli family law system. Now, for reasons beyond the scope of this brief survey, there is concern, primarily among representatives of women’s organizations, that at as a result of this new law, the unhealthy phoenix known as “the race for jurisdictions” which now will rise from the “mostly dead”.

In addition, it appears the law gives an inordinate amount of power to the workers of the support unit to explain to families the ramifications of whichever path they take. It’s difficult to avoid the conclusion that to some extent or another, people who are neither trained nor qualified as lawyers will be giving legal advice to family members.

During this 9 week interim period, one may file for emergency petitions so that one party doesn’t make off with assets, and in theory, temporary child support must also be ensured. However, when applying for these emergency measures, one is not allowed to get into details/background of the conflict, just to keep things short and sweet. If someone can tell me how I can justify a lien on someone’s assets – an infringement on their constitutional property rights – without describing a pattern of behavior and the grounds for my reasonable belief that they will move assets – I’ll be happy to hear from them.

Why do I say, the Emperor’s new clothes? Frankly, the chatter of excitement I hear around this new law make me nervous. In the Knesset committee drafting the law, there was actually an extremely reasonable suggestion made by the representative from the Rackman Center for the Advancement of the Status of Women to run a pilot project of the law in one Family Court before enacting far-reaching legislation. From the proceedings of the committee it appears that no one even seriously considered her proposal.

I’m wondering where people are putting their critical faculties; some of the responses I’m seeing of the new law, are so unequivocally enthusiastic that it makes me wonder. Can this really be the greatest thing to happen to family law, will all those high conflict families now resolve their conflicts peacefully, as we usher in an era of peace, love and brotherhood? Is this law all it will take so that people will no longer pull one another apart and damage their children in the process?

Here’s what I am afraid is going to happen, and I’d be happy to be wrong:

People who have been in abusive relationships are going to be further dissempowered by the legal process. I’ve had clients who went voluntarily to the support unit attached to the court, and came out feeling that in one meeting, not a series of meetings over nine (!) weeks, they were once again subject to the manipulative, often charismatic, problematic partner taking over the discussion, dictating the agenda. Once again causing them to cower, neither allowed to voice their needs nor to stake a claim – just a meeting in which the same old narratives were used to bash.

Let’s take a situation where there isn’t necessarily physical violence, but there is emotional abuse and the woman (this is not necessarily gender-specific; though most of the people I represent in emotionally abusive relationships are women, I have also represented men who are the victims in these relationships) needs to leave the house as soon as possible. Every day under the same roof is destroying her, and impacting the children negatively. In general, I would run to file a suit for custody which would put into place the process for changing the child’s residence. Now, there is nothing I can do.

Or, consider a situation in which one spouse has total control and knowledge over what’s going on with the family assets, perhaps a family business. In the time it takes to get past the procedures established in the new law, lots of damage can be done. It doesn’t really matter that the law dictates that assets should not be touched, anyone in the field knows that it’s easier to prevent assets being moved around than to restore the status quo ante.

Or, take the case of malevolent parental gatekeeping or alienation in which, as anyone who has dealt with these cases knows, the problematic parent is generally not even capable of recognizing and acknowledging what they are doing to their children and to the other parent. These are cases which demand immediate and forceful judicial intervention (which happens rarely enough in any case) and instead, we are delaying any meaningful intervention.

I fear for the weaker parties, and I wonder at the feminists in the Knesset and members of the legislative committee who were among the cheerleaders for the law. It’s difficult to escape the impression that they checked their feminism at the door in the hopes of bringing us closer to John Lennon’s – imaginary – utopia, as they sought to push this legislation through. They certainly weren’t thinking of many of the women I represent, women for whom I truly fear today.

Emotional abuse is often far more damaging, and far more difficult to identify and acknowledge than physical abuse. Even among social workers who are supposed to be trained to identify it, I find myself engaged in an ongoing struggle to have the existence of the emotional abuse acknowledged and its consequences recognized. Is this same woman now supposed to sit over a period of weeks in a forum which is not appropriate for her?

In addition, the law actually diminishes the role of the lawyer as a problem-solver. Cynics out there may say that family law lawyers don’t solve problems in any case, but research in the United States has shown the cynics wrong. Research has shown that indeed the majority of family law lawyers are committed to solving problems which would allow their clients to move on with their lives.

More than this, the law is paternalist and undermines the autonomy of the individual. There is sufficient information for the public regarding ways of resolving disputes without litigation, and people should have the right to choose the path they feel suits them best, whether mediation, collaborative divorce, or by working with lawyers committed to finding speedy solutions. In any case, Family Courts in Israel tend to refer litigants to the support units attached to the court, as part of a process which is absolutely voluntary. People should have a basic right to make that their choice.

Sure, there are people who make litigation hell, but those same people will know how to inflict the maximum amount of pain possible during the period of time when the family is not allowed, by law, to go to court.

Let’s be honest – the system is overworked, and there are some very good judges out there, trying to do good and serious work, but there simply aren’t enough of them. Rather than find the budget to appoint more judges, a less expensive “solution” has been found, one which will weaken the weak and clog up the system. It may work well for some families, and I hope that it does; however, those cases which bog down the system – the high conflict families, and the individuals addicted to litigation – will further bog down the system, since the need to go through the motions of weeks of basically convincing the parties to solve the problem outside of court will create deeply entrenched problems which judges will then need to unravel.

I shudder to think what the emotional – and financial – cost will be to those who are forced to tread this path, against their will and against their best interests.